was, for the benefit of the child, reputed in the same condition as if born, and the common law is in this respect the same. Both in England and in this country, it is well settled that an infant in ventre sa mere is deemed to be in esse, or in being, for the purpose of taking a remainder, or any other estate or interest which is for his benefit, whether by descent, devise, or under the statute of distribution. Under the law of England a bill may be filed in its favor, a court of equity will grant an injunction to protect its rights, and the destruction of such a child is murder; and in most of our own States the destruction of such a child by any means is made a felony, unless where such act is necessary to preserve the life of the mother. The common law doctrine as to such infants seems to have been recognized to its fullest extent in this country, although it is generally regulated by statute, but such statutes will, in most cases, be found to be reenactments of the common law, and where they vary from that it is in extending the common law rights of such infants. The child, then, is to be considered in being from the time of conception, when it is for the benefit of the child that it should be so considered. As respects the rights of third persons, or those claiming through the infant, if the child should be born dead or in such an early stage of pregnancy as to be incapable of living, it is to be considered as never having been conceived or born. Children born within six months after conception are presumed to be incapable of living, and therefore cannot take and transmit property by descent unless they actually survive long enough to rebut that legal presumption. When the mother dies before the birth of the child, and the latter is delivered by the cæsarean operation, it is considered in existence before its birth, for its own benefit to take the estate of the mother by descent, but not for the benefit of the father to enable him to hold as tenant by the curtesy. Tyler on Inf. §§ 151 to 158. WHO ARE INFANTS. By the common law no person acquires fully all his political and civil rights until he is 21 years of age, at which time his infancy terminates. This rule, however, does not prevail in all systems of jurisprudence, for in Spain and some other countries emancipation does not take place until the age of 25. sexes. By the common law the period of emancipation is the same for both In the American States the common law rule prevails, except where it has been changed by statute. In Vermont, Ohio, Illinois, and Nebraska females are considered of full age at 18. In Maryland females of that age may dispose of their real estate by will, and in Texas a female under 21 who shall marry in accordance with the laws of the State is deemed of full age after such marriage. R. S. Vt. 1863, chap. 72, § 1; Sparhaick vs. Buell's Adm. 9 Vt. Rep. 41; Stevenson vs. Westfall, 18 Ill. 209; 1 R. S. Ohio, ch. 56, § 1; Md. Code, art. 93, § 300; R. S. Neb. ch. 22, §1; Oldham & White's Digest, Texas, art. 1400. DISPOSAL OF CHATTELS BY WILL. While, as a general rule, an infant labors under certain disabilities, it is not our purpose to give a detailed account of these disabilities, but rather to give some idea of the privileges granted and guards thrown around him by the law. The adult may do many things in reference to which the infant is either forbidden to act, or, if not forbidden, can only act under certain well defined legal restrictions, but the tendency of the law in many respects has been to make the privilege the rule and the disability the exception. While, as we have seen, an infant may take and hold property, real and personal, yet, by the common law, he cannot make a will of lands. But by the common law an infant may make a testament of chattels; if a male, at the age of 14, and if a female, at the age of 12 years. The civil law gave the infant the power to dispose of chattels by will at the age of 17. In this country the matter has been very generally regulated by stat ute. The rule of the civil law has been adopted in Connecticut and Illinois. In Vermont, Massachusetts, New Hampshire, Ohio, Pennsylvania, Maine, Indiana, New Jersey, North Carolina, Mississippi, Nebraska, Texas, and Florida none under full age can devise either real or personal property. In Maryland, Rhode Island, Missouri, Oregon, and Virginia, wills of personal estate may be made after 18. In New York the period is 18 for males and 16 for females. In South Carolina an infant of 18 years may make a valid will of personalty by conforming to certain statute provisions. VOID AND VOIDABLE ACTS. In Cecil vs. Salsbury, 2 Vern. Ch. R. 224, Lord Mansfield is reported to have said: Miserable, indeed, must the condition of minors be; excluded from the society and commerce of the world; deprived of necessaries, education, employment, and many advantages; if they could do no binding acts. Great inconvenience must arise to others if they were bound by no act. The law, therefore, at the same time that it protects their imbecility from injury through their own imprudence, enables them to do binding acts for their own benefit and, without prejudice to themselves, for the benefit of others. In an early case in Massachusetts Justice Wilde says: In all cases the benefit of the infant is the great point to be regarded; the object of the law being to protect his imbecility and indiscretion from injury, through his own imprudence, or by the craft of others. Oliver vs. Houdlet, 13 Mass. 237. This protection is afforded by considering his acts as not binding in certain cases and allowing him to rescind his contracts with certain exceptions. There are two degrees in which his acts are not binding: first, where they are held to be wholly void, and, second, where they are defeasible, at the election of the infant. A void act never is or can be binding upon any one, and it is incapable of being confirmed. There is some uncertainty in the books as to the line of distinction between the void and voidable acts of an infant, with an apparent inclination in the courts to narrow the first and enlarge the latter. Tucker vs. Moreland, 10 Peters, 58. The reason of this seems to be that, as the principle is the protection of the infant against his own weakness, if this protection can be secured to him without inflicting a detriment on innocent persons, such inflic tion must be unnecessary and unjust. To consider any acts of an infant absolutely void might operate to his own protection, but it would in many cases seriously affect the rights of third persons in no wise impli cated in the infant's transactions, and night not unfrequently be preju dicial to the infant himself. This is strongly enforced by Bingham, and his reasoning is in the main approved by Tyler. Bingham on Infancy, p. 14; Tyler on Infancy, § 10. Any attempted enumeration of the acts which have been held void or voidable, or a discussion of the mode in which the infant may avoid or ratify and confirm his voidable acts, is not within the purview of the present inquiry. The precedents and decisions in these cases are numerous, easily accessible, and of sufficient variety to satisfy any reasonable inquirer. The privilege conferred by law upon infancy is a personal one, and, as a general rule, no one but the infant himself or his legal representatives can avoid his voidable acts, deeds, and contracts, for while living he ought to be the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit, and when dead they alone should interfere who legally represent him. Tyler, § 19; Hyer vs. Hyatt, 3 Cranch C. C. 276. The indulgence allowed by the law to infants, being for their own security, cannot be taken advantage of by persons of full age and legal capacity to contract. Hence, although the infant may avoid his contract, yet it is binding on a person of full age who contracts with him. "Every person deals with an infant at arm's-length, at his own risk, and with a party for whom the law has a jealous watchfulness." Story on Contracts, § 13. All parties dealing with an infant, whether as co-contractors with him or as adverse parties, are liable upon such contracts, co-contractors in any event and adverse parties until the contract is disaffirmed by the infant. As to the time when the voidable acts may be disaffirmed, the rule laid down is that all executory contracts and all contracts respecting personal property may be avoided by the infant either before or upon his coming of age, but conveyances of realty cannot be avoided until he attains full age. Tyler, § 30. But an infant cannot retain the benefits of his contract and thus affirm it, and yet plead infancy to avoid the payment of the purchase money. Henry vs. Root, 33 N. Y. Rep. 526. If the contract has been fully executed on both sides, and the infant disaffirm and reclaim what he has paid, he must restore the consideration received. Bigelow vs. Kinney, 3 Vt. 353; Williams vs. Norris, 2 Littell's R. 157; Hill vs. Anderson, Sme. & Mar. 216; Grace vs. Hale, 2 Humph. 27; Smith vs. Evans, 5 ib. 70; Badger vs. Phinney, 15 Mass. 359; Edgerton vs. Wolf, 6 Gray's [Mass.] Reps. 453. WHEN INFANTS MAY BE WITNESSES. An infant may be a witness if proved to have sufficient discretion and understanding of the obligation of an oath. The test universally is that the child feel the binding obligation of an oath from the general course of his religious education. The effect of an oath upon the conscience of a child should arise from religious feelings of a permanent nature, and not merely from instructions confined to the nature of an oath, recently communicated for the purpose of the trial. Rex vs. Williams, 32 E. C. L. 524. But in one case where a child 9 years old, though very intelligent, did not understand the nature of an oath nor the moral penalty of false swearing, the court instructed her on the spot and then allowed her to be sworn. Jenner's case, 2 City Hall R. (N. Y.) 147. And children of 10, 9, 7, and even 5 years of age have been held competent. Regina vs. Perkins, 38 E. C. L. 236; Commonwealth vs. Hutchins, 10 Mass. 225; State vs. Whittier, 21 Maine, 341. But the question rests mainly in the discretion of the court. The adverse party may require that a witness of tender years shall be examined as to his understanding of the nature and obligation of an oath, and, before the child is admitted to testify, the judge must be satisfied that the child feels the binding obligation of an oath. People vs. McNair, 21 Wend. 608. MARRIAGE. The common law age of consent to marriage is 14 for males and 12 for females. Contracts of marriage, where both parties are of the age of consent, if executed, are as binding as if made by adults; but if either party is under that age, both have the privilege of avoiding, a principle not found in any other contracts of infants. The common law rule is in force in New York and Texas and in most of the other States. In Maine, Vermont, Mississippi, and Missouri males under 21 and females under 18 are forbidden to marry without the consent of the parents. In Ohio the age is 18 for males and 14 for females. In Indiana and Illinois the age is 17 for males and 14 for females. In Wisconsin, Minnesota, and Oregon, males 18 and females 15. In Michigan and Nebraska, males 18, females 16. In Iowa and North Carolina, 16 and 14. Maryland imposes a fine for performing the marriage ceremony, where the parties are under 21 for males and 16 for females, without the consent of the parents.' In most of the States the law requires publication of banns or a license, and as a general rule the consent of the parents is required where the parties, or either of them, are under full age. In the absence of any specific provision declaring marriages not cele brated in the prescribed mode as between parties under certain ages absolutely void, it is held that all marriages regularly made according to the common law are valid and binding, although had in violation of specific statute regulations. 2 Kent's Com. 90, 91; 2 Greenl. Ev. § 460; Londonderry vs. Chester, 2 N. H. 268; Hantz vs. Sealy, 6 Binney (Pa.), 405; Milford vs. Worcester, 7 Mass. 48; Parton vs. Hervey, 1 Gray, 119, The punitive provisions of the statutes are treated as directory only upon ministers and magistrates, and to prevent, as far as possible, by penalties on them, the solemnization of marriages when the prescribed conditions and formalities have not been complied with. See on this subject Tyler, §§ 81 to 84, 91, 92. THE STATUTE OF LIMITATIONS. It is a maxim of the law that no laches or neglect is imputable to an infant during his minority, because he is not supposed to be cognizant The Lyon Médical gives the following as the legal marriageable ages for men and women in different countries of Europe: |